ANOTHER REMINDER THAT INITIAL INJURY REPORTS MATTER, DO THEM PROPERLY!

By: Sean Riordan, Esq.

Each and every time that I speak to union members throughout New York I harp on the importance of properly filling out the initial injury reports following an on-the-job occurrence. Recently a member said to me that they had “heard me give this speech a hundred times” to which I replied, “it’s as true today as it was the first time you heard it.” Helping me prove my point, just last month the Appellate Division again affirmed the tantamount importance of a Correction Officer’s initial injury report in the case of Hernandez v. New York City Employees’ Retirement System (“NYCERS”). While the lesson may be old and repetitive, it bears repeating.

In Hernandez v. NYCERS a NYC Correction Officer claimed to have been injured when an “inmate pushed her.” Ordinarily, this “act of an inmate” is sufficient to qualify a Correction Officer for a three-quarters (3/4’s) disability pension. However, as we have seen many times, NYCERS denied the Officer’s ¾’s application because the “contemporaneous documentation”, i.e. the initial injury reports, did not mention that the officer had been pushed by the inmate. The Court specifically wrote:

“Contrary to the [officer’s] contention, [NYCERS] was not required, as a matter of law, to credit her testimony that her injury occurred when she was pushed by an inmate. Indeed, her testimony conflicted with the account of the accident that was given in written reports that were prepared in connection with the incident. Inconsistencies between a petitioner’s sworn testimony and written documents present a credibility issue for the factfinder to resolve.”

Put plainly, this means that NYCERS does not have to accept as truthful a later, not previously documented description of how an injury occurred. It also means that the Court gives NYCERS extreme deference in determining which version of events they choose to believe, the initial injury report descriptions or a subsequent description of the occurrence. It is no secret which of these two choices NYCERS will choose. In fact, the NYCERS Summary Plan description for NYC Correction Officers explicitly states:

“The NYCERS Medical Board and Board of Trustees are likely to believe that disability reports filed as soon as possible after an accident or other event have greater credibility than reports filed after a delay.”

Importantly, the credibility that NYCERS gives these reports is not contained to the inmate’s actions, but also to injury sites. NYCERS will look to these initial injury reports to determine what was injured during the inmate occurrence. If the initial reports do not contain the injury site that now disables you, NYCERS will not consider the injury related to the occurrence. Far too often officers feel extreme pain in one area of their body following an occurrence and only “minor” pain in others. Although the officer fully documents the area that is causing them a lot of immediate pain, they fail to include these other “minor” areas in their reports. Unfortunately, these other “minor injuries” frequently become more severe over time but NYCERS will not consider them related to the occurrence because they were not documented at the time of the injury.

Hernandez also makes clear that the “action” of an inmate is important when determining if an officer qualifies for ¾’s. The Court stated that “the mere fact that the [officer] was injured while she was in the presence of an inmate, or while she was engaged in providing a service for the benefit of an inmate, is insufficient” to qualify for ¾’s coverage. The courts have held that an inmate must perform an “affirmative act” that leads to an officer’s injury in order for coverage to apply.

Two simple rules emerge from the Hernandez case and other cases like it:

1) If an inmate was involved in your injury, fully document what action the inmate took that led to your injury. Fully describe what the inmate did that caused you harm;

2) Take a physical inventory or your body following an occurrence and document each and every body part that hurts in the initial paperwork, don’t overlook an injury site simply because you believe it is “minor.” If it hurts, put it down.

Lastly, if you fail to fully describe how the inmate caused your injury, or failed to put an injury site down on the initial injury report, you can and should use your filings with the NYS Workers’ Compensation Board to correct the record. Understandably, immediately after an injury officers are consumed by the pain they are feeling and/or are anxious about the events that just transpired. This can lead to mistakes/omissions in the initial injury report filled out for the Department. This is why filing your NYS Workers’ Compensation Forms as soon as possible after an occurrence is so important. If filed immediately after an injury, these reports can also be viewed as “contemporaneous documentation” of an event or injury. Use these forms to also fully explain the events that led to your injury and any additional sites of injury which you may have neglected to put down on the initial reports.

As always, if you have any problems, issues, concerns or questions I am always here to discuss the case with you. You can reach me any time at (212) 612-3198 or Sean@nycomplaw.com

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